Elvis Presley guitar at center of court battle

FILE - This April 22, 2013 file photo shows the slightly smashed acoustic guitar played by Elvis Presley during the final tour before his death in 1977 on display at the National Music Museum in Vermillion, S.D. The guitar may have to taken off display. A lawsuit filed in July 2014 in South Dakota is seeking to determine who is the legal owner of the guitar. Memphis-based guitarist Robert Johnson donated the Elvis guitar last year to the museum, but a man now claims he is the owner of the slightly smashed acoustic guitar. (AP Photo/Dirk Lammers, File)(Photo: Dirk Lammers, AP)

SIOUX FALLS, S.D. — A Tennessee man is asking an appellate court to overturn a decision that awarded a guitar once owned by Elvis Presley to a South Dakota museum.

The National Music Museum at the University of South Dakota acquired the guitar from Robert Johnson in 2012 as part of a package of instruments worth $250,000. The Martin D-35 guitar was played by the rock icon during his final tour in 1977 and was damaged during a show in St. Petersburg, Fla., where Elvis gave it to a fan. He died six months later.

In an interview with the Argus Leader last year, Johnson said the guitar had a dark history because Elvis played the instrument when he was addicted to prescription drugs.

Larry Moss, a Memphis-based memorabilia collector, sued Johnson in Tennessee state court, arguing that he was the rightful owner of the guitar. While that proceeding played out, the museum filed suit against Moss, which ended up in federal district court in South Dakota.

At issue in both cases was whether Moss had legally acquired the guitar from Johnson. The D-35 was one of four guitars that Johnson agreed to sell Moss in 2008 for $120,000, according to Moss. Johnson turned over two guitars to Moss for $70,000, but Moss never received the other two and never paid for them.

Regardless, a Tennessee judge ruled that the Elvis guitar belonged to Moss.

But in her decision this year, Federal District Court Judge Karen Schreier ruled that under Tennessee and South Dakota law, the title for ownership does not pass from person to another until deliver of the item is made. Because Johnson never possessed the guitar, he did not have title to the instrument. The decision meant that the museum could keep the guitar.

Moss subsequently asked Schreier for a new trial, arguing that the federal court should have shown deference to the Tennessee decision. But Schreier denied the motion this month, saying the Tennessee decision was in part “inaccurate.”

“The Tennessee judgement entered on Jan. 8, 2015, is not binding on this court,” she wrote. “The issue of whether or when title passed from Johnson to Moss was not before the Tennessee Chancery Court and was not litigated by the parties.”

The guitar’s fate will now be decided by a three-judge panel of the 8th Circuit Court of Appeals.